IN THE CASE OF:  	  

		BOARD DATE:  24 September 2015	  

		DOCKET NUMBER:  AR20150002306 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his general discharge under honorable conditions to honorable.

2.  The applicant states he has been out of the Army for 33 years and requests his discharge be changed to honorable.

3.  The applicant provides no additional evidence or documentation.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army on 14 January 1981.  After completing initial training he was awarded military occupational specialty (MOS) 55B (Ammunition Specialist).  The highest rank/grade he held was private first class (PFC)/E-3.

3.  Available records show his first assignment was to an ammunition unit in Germany where he was participating in the Personnel Reliability Program (PRP). On 22 July 1982, he was offered and accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) after being found to possess marijuana in the hashish form.  The record does not show the punishment given.

4.  On 16 August 1982, the applicant’s battalion commander approved the applicant’s removal from the PRP.  Records also show he was reduced from the rank of PFC to private (PV1)/E-1 on 14 October 1982; however, the reason for the reduction is not identified.

5.  In December 1982, the applicant was reassigned to Fort Benning, GA.  

6.  On 7 March 1983, he accepted NJP under the provisions of Article 15, UCMJ for wrongfully, and without authority, wearing the insignia of PFC.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

7.  On 16 March 1983, he again accepted NJP under the provisions of Article 15, UMCJ for unlawfully throwing another Soldier to the ground and striking the Soldier's head on the floor.  He was additionally charged with using disrespectful language toward a noncommissioned officer.  His punishment was a forfeiture of pay, extra duty, and restriction.

8.  On 6 April 1983, his commander recommended the applicant be barred from reenlistment.  His basis for the recommendation included the two NJP’s cited above, a pending civilian criminal complaint for trespassing (apparently occurring on or about 18 February 1983), and (according to personnel records at Fort Benjamin Harrison, IN) the fact that he had received two previous NJP’s while assigned to his unit in Germany.  It was noted these two NJP were not in the applicant's records, but had been requested from Fort Benjamin Harrison.  The commander's recommendation was approved on 13 April 1983.

9.  His record contains a Military Police Desk Blotter entry from 2 May 1983 wherein it states the applicant was arrested by civil authority for possession of alcohol in a city park.

10.  On 17 May 1983, the applicant was notified by his commander he was being considered for separation under the provisions of chapter 13 (Separation for Unsatisfactory Performance), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The stated reasons for this action were the applicant's "defective attitudes, inability to adapt socially, and patterns of misconduct."  He was also informed the least favorable characterization of service he could receive was a general discharge.  He was advised he could seek legal counsel.  The applicant acknowledged this action on 17 May 1983.

11.  He waived counsel on 17 May 1983.  The applicant:

* affirmed he had been advised of the basis of the contemplated action and its effects
* confirmed he had been made aware of his rights under the provisions of chapter 13
* elected not to submit statements in his own behalf 
* understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* was aware he could become ineligible for many or all benefits as a Veteran under Federal and State laws
* had been told he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade his discharge, but that the act of consideration did not imply his discharge would be upgraded
* elected not to see a lawyer

12.  On 19 May 1983, the separation authority approved the commander's recommendation and directed the applicant be issued a General Discharge Certificate.  On 25 May 1983, he was discharged accordingly.

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under honorable conditions (general).  Chapter 13, Army Regulation 635-200 was shown as the separation authority, and the narrative reason for separation was unsatisfactory performance.  It also shows he completed 2 years, 4 months, and 12 days of net active creditable service and he was awarded or authorized:

* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Grenade Bar
* Army Service Ribbon
* Overseas Service Ribbon

14.  There is no indication the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

	a.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	b.  A Soldier may be separated under the provisions of chapter 13 when it is determined that he is unqualified for further military service due to unsatisfactory performance.  Criteria include:

* in the commander's judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier
* the seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale
* it is likely that the Soldier will be a disruptive influence in present or future duty assignments
* it is likely the circumstances forming the basis for initiation of separation proceedings will continue or recur
* the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records suggest his commander determined he would not develop sufficiently to become a satisfactory Soldier.  Additionally, his commander apparently found his behavior to be a disruptive influence; thus, his retention would have an adverse impact on military discipline, good order, and morale.  Accordingly, his chain of command initiated separation action against him.

2.  The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with applicable law and regulations at the time.



3.  Based on his extensive record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is, thus, insufficient basis upon which to grant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20150002306



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150002306



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1